U low Emission Vehicle Program

(j) Fleet Average Greenhouse Gas Emission Levels. For the purposes of determining compliance with 310 CMR 7.40(2)(a)(7):

1. For the 2009-2011 model years, any manufacturer selecting compliance Option 2 must notify the Department of that selection in writing by May 2, 2011 or must comply with Option 1.

A manufacturer complying with Option 1 shall provide the Department with the number of passenger cars, light-duty trucks, and medium-duty passenger vehicles delivered for sale in accordance with Title 13 CCR 1961.1. Each manufacturer shall submit to the Department a report using the same methodology and format used to report such information to California Air Resources Board. Such report shall be filed with the Department by March 1^st of the calendar year succeeding the end of the model year and shall include the number of greenhouse gas vehicle test groups certified pursuant to 310 CMR 7.40(2)(a)(7), delineated by model type.

A manufacturer selecting Option 2 shall provide to the Department values for the number of vehicles produced and delivered for sale in Massachusetts and total values for number of vehicles produced and delivered for sale in California, the District of Columbia, and for all states that have adopted California’s fleet average greenhouse gas emission standards. Each manufacturer shall submit to the Department a report using the same methodology and format used to report such information to California Air Resources Board. For the 2009 and 2010 model years, such report shall be filed with the Department by May 2, 2011 and shall include the number of greenhouse gas vehicle test groups certified pursuant to 310 CMR 7.40(2)(a)(7). For the 2011 model year, such report shall be filed with the Department by March 1^st of the calendar year succeeding the end of the model year and shall include the number of greenhouse gas vehicle test groups certified pursuant to 310 CMR 7.40(2)(a)(7), delineated by model type.

2. For the 2012 model year any manufacturer selecting compliance Option 2 must notify the Department of that selection in writing by May 2, 2011 or must comply with Option 1. For 2013 through 2016 model years any manufacturer selecting compliance Option 2 must notify the Department of that selection in writing and have that notification hold for subsequent model years or must comply with Option 1.

A manufacturer complying with Option 1 shall provide the Department with the number of passenger cars, light-duty trucks, and medium-duty passenger vehicles delivered for sale in accordance with Title 13 CCR 1961.1. Each manufacturer shall submit to the Department a report using the same methodology and format used to report such information to California Air Resources Board. Such report shall be filed with the Department by March 1^st of the calendar year succeeding the end of the model year and shall include the number of greenhouse gas vehicle test groups certified pursuant to 310 CMR 7.40(2)(a)(7), delineated by model type.

A manufacturer selecting Option 2 shall provide to the Department values for the number of vehicles produced and delivered for sale in Massachusetts and total values for number of vehicles produced and delivered for sale in California, the District of Columbia, and for all states that have adopted California’s fleet average greenhouse gas emission standards. Each manufacturer shall submit to the Department a report using the same methodology and format used to report such information to California Air Resources Board. Such report shall be filed with the Department by March 1^st of the calendar year succeeding the end of the model year and shall include the number of greenhouse gas vehicle test groups certified pursuant to 310 CMR 7.40(2)(a)(7), delineated by model type.

For the 2012-2016 model year, if a manufacturer has outstanding greenhouse gas debits at the end of the model year, as calculated in accordance with Title 13 CCR 1961.1(b), a manufacturer shall equalize Greenhouse Gas emission debits by earning g/mi Greenhouse Gas emission credits in an amount equal to the g/mi Greenhouse Gas debits, or by submitting a commensurate amount of g/mi Greenhouse Gas credits to the Department that were earned previously or acquired from another manufacturer. A manufacturer shall equalize combined Greenhouse Gas debits for passenger cars, light-duty trucks, and medium-duty passenger vehicles within five model years after they are earned.

3. For 2012-2016 model years, a manufacturer may elect to demonstrate compliance with 310 CMR 7.40(2)(a)(7) by demonstrating compliance with the National Greenhouse Gas Program. For the 2012 model year, a manufacturer selecting compliance with this option shall notify the Department of that selection, in writing, by May 2, 2011. For 2013-2016 model years, a manufacturer selecting compliance with this option shall notify the Department of that selection in writing and have that notification hold for subsequent model years or must comply with 310 CMR 7.40(2)(a)(7).

A manufacturer selecting to demonstrate compliance with 310 CMR 7.40(2)(a)(7) by demonstrating compliance with the National Greenhouse Gas Program shall submit to the Department a copy of the official report that is submitted as required under 40 CFR §86.1865-12 for demonstrating compliance with the National Greenhouse Gas Program and the official EPA determination of compliance. These must be submitted no later than May 1 of the calendar year following the close of the model year, for each model year that a manufacturer selects compliance with this option.

If a manufacturer has outstanding greenhouse gas debits at the end of the 2011 model year, as calculated in accordance with Title 13, CCR 1961.1(b), the manufacturer must submit to the Department a plan for offsetting all outstanding greenhouse gas debits by using greenhouse gas credits earned under the 2012-2016 model years National Greenhouse Gas Program.

4. For 2017-2025 model years, any manufacturer selecting compliance Option 2 must notify the Department of that selection in writing and have that notification hold for subsequent model years or must comply with Option 1.

A manufacturer complying with Option 1 shall provide the Department with the number of passenger cars, light-duty trucks, and medium-duty passenger vehicles delivered for sale in accordance with Title 13 CCR 1961.3. Each manufacturer shall submit to the Department a report using the same methodology and format used to report such information to California Air Resources Board. Such report shall be filed with the Department by March 1^st of the calendar year succeeding the end of the model year and shall include the number of greenhouse gas vehicle test groups certified pursuant to 310 CMR 7.40(2)(a)(7), delineated by model type.

A manufacturer selecting Option 2 shall provide to the Department values for the number of vehicles produced and delivered for sale in Massachusetts and total values for number of vehicles produced and delivered for sale in California, the District of Columbia, and for all states that have adopted California’s fleet average greenhouse gas emission standards. Each manufacturer shall submit to the Department a report using the same methodology and format used to report such information to California Air Resources Board, shall include the number of greenhouse gas vehicle test groups certified pursuant to 310 CMR 7.40(2)(a)(7), delineated by model type.

If a manufacturer has outstanding greenhouse gas debits at the end of the model year, as calculated in accordance with Title 13 CCR 1961.3(b), a manufacturer shall equalize Greenhouse Gas emission debits by earning g/mi Greenhouse Gas emission credits in an amount equal to the g/mi Greenhouse Gas debits, or by submitting a commensurate amount of g/mi Greenhouse Gas credits to the Department that were earned previously or acquired from another manufacturer. A manufacturer shall equalize combined Greenhouse Gas debits for passenger cars, light-duty trucks, and medium-duty passenger vehicles within five model years after they are earned.
(6)   Regional Emissions Testing Facility and Document Repository.

(a)   For the purposes of emissions testing in compliance with 310 CMR 7.40(3)(c), (d), and (e), and record keeping, Massachusetts may, in conjunction with at least three other Northeast states which have adopted and are implementing the California Low Emission Vehicle Program under the authority of 42 U.S.C § 7507, enter into an agreement to establish a regional emissions testing facility and document repository.

(b)   At such time as Massachusetts enters into an agreement pursuant to 310 CMR 7.40(6)(a), for the purposes of compliance and enforcement in Massachusetts, determinations and findings of the California ARB pursuant to 310 CMR 7.40(3)(c), (d), and (e) shall be applicable, in addition to the determinations and findings obtained through any agreement under 310 CMR 7.40(6)(a).

(c)   Should the Department determine that such testing is necessary or desirable, the Department reserves the right to conduct, after consultation with the California ARB, vehicle testing pursuant to 310 CMR 7.40(3)(c), (d), and (e).

(a)   The Department may conduct inspection and surveillance of new and used motor vehicles for the purposes of compliance with the requirements set forth in 310 CMR 7.40(2).

1.   Inspections by the Department or its agents, pursuant to 310 CMR 7.40(7)(a) may be conducted on any premises owned, operated, used, leased, or rented by any vehicle dealer. Said inspection may extend to all emission-related parts and operation and may require the on premises operation and testing of an engine or vehicle, and inspection of any related records, including records of emission related part repair performed under warranty.

2.   The Department or its agents may perform functional tests, steady-state tests, and other tests as reasonably necessary.

(b)   Any order or enforcement action taken by the State of California to correct noncompliance with any § of Title 13 CCR 2109 through 2149, shall be applicable to all said vehicles subject to 310 CMR 7.40, sold or leased, offered for sale or lease, or registered in Massachusetts.

(c)   Any voluntary or influenced emission-related recall campaign initiated by any manufacturer pursuant to Title 13 CCR 2109 through 2149 shall extend to all applicable vehicles subject to 310 CMR 7.40, sold or leased, offered for sale or lease, or registered in Massachusetts.

(d)   Massachusetts Recall. (Reserved.)

(e)   The Department shall enforce the requirements of 310 CMR 7.40 in accordance with Title 13 CCR and applicable federal and Massachusetts law, including but not limited to M.G.L. c. 21A, § 16, and M.G.L. c.111, § 142A through 142M.

(f)   Penalty for Failure to Meet ZEV Requirements. Any manufacturer that fails to produce and deliver for sale in Massachusetts the required number of ZEVs or submit an appropriate amount of grams/mile ZEV credits and does not make up ZEV deficits within the specified time period shall be subject to penalties under M.G.L. c.111, § 142K applicable to a manufacturer that sells a new motor vehicle that does not meet the applicable emission standards adopted in 310 CMR 7.40. The cause of action shall be deemed to accrue when the ZEV deficits are not balanced by the end of the specified time period. The number of vehicles not meeting the general percentage ZEV requirement shall be calculated according to the following equation, provided that the percentage of a large volume manufacturer’s ZEV requirement for a given model year that may be satisfied with partial ZEV allowance vehicles or ZEV credits from such vehicles may not exceed the percentages permitted under § C.2.1 of California Exhaust Emission Standards and Test Procedures for 2005-2008 Model Zero- Emission Vehicles, and 2001 and Subsequent Model Hybrid Electric Vehicles, in the Passenger Car, Light-duty Truck and Medium-duty Vehicle Classes or § C.2.1 of California Exhaust Emission Standards and Test Procedures for 2009 and Subsequent Model Zero- Emission Vehicles, and 2001 and Subsequent Model Hybrid Electric Vehicles, in the Passenger Car, Light-duty Truck and Medium-duty Vehicle Classes:
(No. of ZEVs required to be produced and delivered for sale in Massachusetts for the model year) - (No. of ZEVs produced and delivered for sale in Massachusetts for the model year) – (No. of ZEV allowances from partial ZEV allowance vehicles produced and delivered for sale in Massachusetts for the model year) – [(Amount of ZEV credits submitted for the model year)/(the fleet average requirement for PCs and LDT1s for the model year)].
(8)   Manufacturer Response To An Administrative Order.

(a)   Upon receipt of an Administrative Order issued by the Department pursuant to 310 CMR 7.40, the manufacturer may request an adjudicatory hearing within ten days pursuant to the procedures set forth in 310 CMR 1.00 et seq., to contest the determination of necessity for the ordered corrective action.

(b)   If a manufacturer requests an adjudicatory hearing pursuant to 310 CMR 7.40(8), and if the determination of necessity is confirmed at the hearing, the manufacturer shall initiate the corrective action which has been approved by the California ARB pursuant to the requirements of Title 13 CCR 2109 through 2135 and 2141 through 2149 for vehicles subject to 310 CMR 7.40, within 30 days of receipt of the decision resulting from the hearing.

(c)   Failure by a manufacturer to comply with an enforcement action ordered by the Department pursuant to 310 CMR 7.40 shall constitute violation of an order issued under the authority of M.G.L. c. 111, § 142B.

(a)   Applicability. 310 CMR 7.40(9) shall apply to all aftermarket parts which are sold, offered for sale, or advertised for sale or use on 1995 and subsequent model-year vehicles which are subject to Massachusetts or federal emission standards.

(b)   Prohibition.

1.   No person engaged in a business which involves the selling of motor vehicle pollution control systems, or parts thereof, shall offer for sale, sell, or install, an air contaminant emission control system, or part thereof, unless it meets the regulations and standards set forth in 310 CMR 7.40(9).

2.   No person shall install, sell, offer for sale, or advertise any device, apparatus, or mechanism intended for use with, or as a part of, any required motor vehicle pollution control system which alters or modifies the original design or performance of any such motor vehicle pollution control system. 310 CMR 7.40 shall not apply to an alteration, modification, or modifying device, apparatus or mechanism found by the Department to either:

a.   Not reduce the effectiveness of any motor vehicle pollution control system; or

b.   Result in emissions from any such modified or altered vehicle which are at levels which comply with existing state or federal standards for that model year of vehicle being modified or converted.

(c)   Replacement Parts.

1. a.   Any replacement part, including consolidated parts, offered for sale or sold in

California and subject to Title 13 CCR 2221, 2224, shall be presumed to be in compliance with 310 CMR 7.40(9) unless California makes a finding to the contrary pursuant to Title13 CCR 2221, 2224.

b.   Any replacement part, including consolidated parts, not offered for sale or sold in California, shall be presumed to be in compliance with 310 CMR 7.40(9)(c) unless the Commissioner makes a finding to the contrary in accordance with Title 13 CCR 2224(a).

2.   The manufacturer of any replacement part subject to the provisions of 310 CMR 7.40(9) shall maintain sufficient records, such as performance specifications, test data, or other information, to substantiate that such a replacement part is in compliance with 310 CMR 7.40(9). Such records shall be open for reasonable inspection by the Commissioner or his/her representative. All such records shall be maintained for four years from the year of manufacture of the replacement part.

(d)   Add-on and Modified Parts.

1.   As used in 310 CMR 7.40, the terms "advertise" and "advertisement" include, but are not limited to, any notice, announcement, information, publication, catalog, listing for sale, or other statement concerning a product or service communicated to the public for the purpose of furthering the sale of the product or service.

2.   a.   No person or company doing business solely in Massachusetts or advertising only

in Massachusetts shall advertise any device, apparatus, or mechanism which alters or modifies the original design or performance of any required motor vehicle pollution control system unless such part, apparatus, or mechanism has been exempted from the provisions of 310 CMR 7.40(9), and the limitations of the exemption, if any, are contained within the advertisement in type size to give reasonable notice of such limitations.

b.   (i)   No person shall advertise, offer for sale, or install a part as a motor vehicle

pollution control system or as an approved or certified device, when in fact such part is not a motor vehicle pollution control system or is not approved or certified by the Department or by California.

(ii)   No person shall advertise, offer for sale, sell or install an add-on or modified part as a replacement part.

c.   (i)   Add-on and modified parts exempted in accordance with Title 13 CCR 2222

are deemed exempt for purposes of 310 CMR 7.40(9)(d).

(ii)   The Commissioner may exempt add-on and modified parts, including consolidated parts, that are not subject to Title 13 CCR 2222. The Commissioner shall make this determination in accordance with Title 13 CCR 2222.

(iii)   Each person engaged in the business of retail sale or installation of an add-on or modified part which has not been exempted from 310 CMR 7.40(9)(d) shall maintain records of such activity which indicate date of sale, purchaser name address, vehicle model and work performed if applicable. Such records shall be open for inspection by the Commissioner or his/her representative. All such records shall be maintained for four years from the date of sale or installation.

(e)   Surveillance.

1.   Replacement Parts. The Commissioner may require the manufacturer of any replacement part subject to the provisions of 310 CMR 7.40(9)(c) to submit any records relating to such part which are maintained pursuant to 310 CMR 7.40(9)(c)2. The Commissioner may require the manufacturer of any replacement part subject to the provisions of 310 CMR 7.40(9)(c) to submit a reasonable number of parts typical of the manufacturer's production for testing and evaluation. If after a review of all records submitted by the manufacturer and of the results of any tests conducted by the Department staff, the Commissioner finds that such part is not in fact a replacement part, the Commissioner may invoke 310 CMR 7.40(9)(f). Replacement parts evaluated pursuant to 310 CMR 7.40 shall be compared with the specifications contained in the applicable vehicle manufacturer's application for certification.

2.   Add-on Parts and Modified Parts. The Commissioner may require the manufacturer of any add-on or modified part subject to the provisions of 310 CMR 7.40(9)(d) to submit a reasonable number of parts typical of the manufacturer's production for testing and evaluation. If after review of the results of any test or evaluations conducted by the Department's staff and of any information submitted by the manufacturer, the Commissioner finds that an add-on part or a modified part does not conform to Title 13 CCR 2222, the Commissioner may invoke 310 CMR 7.40(9)(f).

(f)   Corrective Action.

1.   When 310 CMR 7.40(9)(f) is invoked pursuant to 310 CMR 7.40(9)(e) or other subsection of 310 CMR 7.40(9), the Commissioner may require the manufacturer to submit a plan for correcting any deficiencies found by the Department. The manufacturer shall submit the plan within 30 calendar days after notification. The Commissioner may require any of the actions contained in the plan, and/or may declare a part of the plan to be not in compliance with 310 CMR 7.40(9)(b)2., unless he or she finds the plan adequate to correct the deficiencies found by the Department. The manufacturer may be required to include in the plan such corrective actions as the cessation of sale of non-complying parts and corrective advertising to correct misleading information regarding the emission control capabilities of the device and to ensure compliance with Massachusetts laws. Nothing in 310 CMR 7.40 shall prevent the Commissioner from also seeking fines for violations of 310 CMR 7.40(9), or other regulations or laws, as applicable.

2.   The manufacturer, within ten calendar days of its receipt of the Commissioner's demand for corrective action, may request an adjudicatory hearing, pursuant to M.G.L. c. 30A, on the necessity for and scope of any corrective action required by the Commissioner.

(g)   Repair Station. Any person holding a vendor's certificate of authority who sells or installs a motor vehicle pollution control system, or part thereof, in violation of 310 CMR 7.40(9)(b)2. shall thereafter be required to install a motor vehicle pollution control system, or part thereof, which is in compliance with the provisions of 310 CMR 7.40(9), upon demand of the purchaser or registered owner of the vehicle concerned, or at the election of the purchaser or registered owner to reimburse the purchaser or registered owner for the expense of replacement and installation of a motor vehicle pollution control system, or part thereof, which is in compliance.

(a)   Massachusetts hereby incorporates by reference Title 13 CCR 1962 Final Regulation Order for Amendments to the California Zero Emission Vehicle Regulation (1962) and California Exhaust Emission Standards and Test Procedures for Model 2005-2008 Zero-emission Vehicles, and 2001 and Subsequent Model Hybrid Electric Vehicles, in the Passenger Car, Light-duty Truck and Medium-duty Vehicle Classes (Test Procedures), except that the following terms are substituted as set forth in 7.40(13)(a)1. through 3.

1.   The term “California” as it appears in Title 13 CCR 1962, § (b)(1)(A), (b)(1)(B), (b)(1)(D), (b)(2)(A), (b)(2)(B), (b)(2)(D), (b)(4), (c)(1), (c)(7), (d)(2) first sentence only, (d)(3), (d)(4), (d)(5)(B), (f), (g)(1), (g)(2)(A), (g)(2)(B), (g)(4), and (g)(7)(A), (i)(A), (j) and in Test Procedures § B., C.2.1(a), C.2.1(b), C.2.1(d), C.2.2(a), C.2.2(b)(1)(A) through (D) and (I), C.2.2(b)(2), C.2.2(d), C.2.4, C.3.1, C.3.7(a), C.3.7(b), C.4.1, C.4.2(a), C.4.2(b)(1), C.4.3, C.4.4(c), C.6., C.7.2(a), C.7.2(b), C.7.4, C.7.7(a) shall be replaced by the term “Massachusetts.”

2.   The date of 2005 as it appears in Title 13 CCR 1962, §§ (b)(1)(A), (b)(1)(B), (b)(2)(A), (b)(2)(B), (b)(2)(C), (b)(2)(d), (b)(3), (b)(6), (b)(7), and in Test Procedures § C.2.1(a), C.2.1(b), C.2.2(a) first sentence only, C.2.2(b), C.2.3(c), C.2.3 shall be replaced by the date 2007.

3.   The term “Executive Officer” as it appears in Title 13 CCR 1962 §§ (b)(2)(C), (g)(4), (g)(5)(A), (g)(5)(B), (g)(5)(D), (g)(6), and (g)(7)(A) and in Test Procedures § C.2.2(c), C.7.4, C.7.5(a), C.7.5(b), C.7.5(d), C.7.6, C.7.7(a) shall be replaced by the term “Massachusetts Department of Environmental Protection.”